More is at stake than the filibuster

Originally published in the San Antonio Express-News, May 29, 2005
by Susan Ives

I’ve enjoyed talking about the filibuster controversy, if for no other reason that the word itself is quite the silliest sounding I have ever heard. Filibuster, from the Dutch vrijbuiter, meaning pirate. Filibuster, filibuster, filibuster. Say it three times, fast, and try not to crack a smile.

The concept itself is equally goofy: a delaying tactic that consists of marathon speechifying. On June 12, 1935 Sen. Huey Long of Louisiana carried on for fifteen hours and thirty minutes, resorting to reciting recipes for fried oysters and potlikkers when he had run through the Constitution and Bill of Rights. It’s the legislative equivalent of holding your breath until your face turns blue.

The Republican anger over the use of the filibuster to block judicial appointments, however, raises vital issues about the very nature of democracy.

I’ve listened to dozens of Republicans say, in essence, “We won, so whatever we do is the will of the people and the Democrats need to shut up and get out of our way.”
If this were indeed the case, we could save a lot of time and trouble by just electing a president and bowing to his “mandate.”

Why bother with those pesky congressmen and senators from the minority party? Their side lost; they have no mandate. Or even legislators from the majority party? If the people’s mandate is so lucid, so compelling, what is the point of having senators and representatives? That just confuses things. Let’s just vote for one guy (let’s be blunt and call him der Fuhrer, an emperor, the Grand Pooh-bah) and let him pick loyalists who share his – our — vision.

It doesn’t work that way, and for a good reason.

The founding fathers struggled to create a system of governance that was of the people, by the people and for the people. They were not so simpleminded as to believe that simple majority rule would accomplish these goals. Their concerns were twofold.

First, they fretted about the tyranny of the majority. James Madison wrote in Federalist Paper 51: “If a majority be united by a common interest, the rights of the minority will be insecure. . . . A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

These auxiliary precautions are found throughout the Constitution: the Electoral College, the veto and provisions for overriding the veto, the bicameral legislature, presidential appointments made with the advice and consent of the Senate, the separation of powers . . . you can compile your own list.

At its heart, the Constitution is a conservative document, one that, by design, makes radical change cumbersome. It is structured to encourage compromise and accommodation, to force the 51 percent to consider the viewpoint of the other 49 percent.

The founding father’s second worry was their knowledge that power has a propensity to consolidate itself. The natural tendency of power is to amass more power or, as Lord Acton was to say a century later, “Power corrupts; absolute power corrupts absolutely.”

We have seen this corruption in action: the recent redistricting in Texas, gerrymandering (another marvelously laugh-making word!) the state to guarantee a Republican majority and Franklin Roosevelt’s attempt in the 1930s to expand the size of the Supreme Court so that he could appoint enough liberal justices to outvote the conservatives on the bench who were blocking his New Deal legislation.

The Constitution is deliberately structured to make it difficult to use power today to consolidate power in the future. Not impossible, but difficult.

The filibuster, of course, is not a clause in the constitution. Neither is the Senate rule that stipulates that a supermajority of two-thirds is required to change the chamber’s rules. Yet both of these serve to protect against the tyranny of the majority and the consolidation of power.

Much more is at stake than the filibuster or a few judicial appointments. We are deciding whether we will have a government of, by and for all the people or a government for the winners and the losers be damned. It’s no laughing matter, after all.